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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

25 FLRA No. 1
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES COUNCIL
Union
and
DEPARTMENT OF THE NAVY
NAVY PUBLIC WORKS CENTER
NORFOLK, VIRGINIA
Agency
Case No. 0-NG-1160
DECISION AND ORDER ON NEGOTIABILITY ISSUES
Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of five Union proposals. /1/ We find that all five
proposals are nonnegotiable.
II. Union Proposal 1
Article 12, Section 3 (Basic Workweek & Hours of Work)
Proposal: Except for the specific functions set forth in
Section 2, the EMPLOYER will notify and, if desired by the
COUNCIL, meet to discuss any proposed changes in the designation
of workdays constituting the basic workweek of any employee in the
UNIT. Such meetings will be held for the purpose of attempting to
work out mutually acceptable changes to the basic workweek or
other acceptable alternatives that provide for meeting the needs
of the EMPLOYER. The basic workweek of employees in the UNIT will
be changed only to meet the needs of the EMPLOYER. Should the
parties hereto fail to reach agreement in regards to the necessity
to effect changes, the EMPLOYER shall have the right to effect
changes, and any dispute resulting therefrom shall be processed in
accordance with the Grievance Procedure Article of this Agreement.
The basic workweek of employees in the UNIT will not be changed
unless there are substantial and reasonable considerations which
dictate the change and in no instance shall the provisions of this
Section be applied in a manner which substitutes a change in work
schedule with the intent of avoiding the payment of overtime, nor
will a workweek be changed to perform work that could reasonably
be performed in any other manner. (Only the underscored portions
are in dispute.)
A. Positions of the Parties
The Agency contends that the disputed portions of the proposal
conflict with a Government-wide regulation and are contrary to
management's right to assign work under section 7106(a)(2)(B) of the
Statute. The Union essentially contends in its petition for review that
the proposal is fully consistent with applicable laws and regulations.
The Union also notes in connection with this proposal that it has been a
part of the parties' agreements since at least 1969. The Union did not
file a response to the Agency's statement of position in this case.
B. Analysis
This proposal requires the Agency to negotiate with the Union over
changes to the basic workweek of bargaining unit employees, and permits
the Union to grieve such changes should the parties fail to reach
agreement on their necessity. It also would require that changes in an
employee's basic workweek only be made where there are "substantial and
reasonable considerations" which dictate the changes, and prohibits a
change in workweek to perform work that could reasonably be performed in
any other manner. Finally, the proposal would prohibit such changes
where the purpose of the change is to avoid the payment of overtime.
The Agency contends that the proposal conflicts with Office of
Personnel Management (OPM) regulation 5 C.F.R. Section 610.121(b)(1) and
(2). /2/ In support of this contention the Agency relies upon the
Authority's decision in American Federation of Government Employees,
AFL-CIO, Local 2484 and U.S. Army Garrison, Fort Detrick, Maryland, 17
FLRA 769 (1985), remanded sub nom. American Federation of Government
Employees, Local 2484 v. Federal Labor Relations Authority, No. 85-1405
(D.C. Cir. Order, Nov. 17, 1986). In that case the Authority held
nonnegotiable a proposal requiring two week notice before any changes in
established work schedules could be made. The Authority concluded that
it conflicted with 5 C.F.R. Section 610.121(b)(2) by precluding the
agency from complying with that regulation unless it became aware of the
need to change work schedules not less than two weeks prior to the
rescheduling.
We recently reconsidered the basis of the Fort Detrick decision in
National Association of Government Employees, Local R7-23 and Department
of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (9186).
As we stated in Scott Air Force Base, 5 U.S.C. Section 6101(a)(3)(A),
/3/ provides that an agency shall schedule employees' tours of duty not
less than seven days in advance, except where it is determined that the
agency would be seriously handicapped in carrying out its functions or
that costs would be substantially increased. 5 C.F.R. Section
610.121(a)(1) /4/ implements that statutory provision and contains
essentially the same language. In Fort Detrick, the Authority
interpreted 5 C.F.R. Section 610.121(b)(2) as requiring an agency to
change employee work schedules as soon as it became aware that such a
change would be necessary. Upon further review, we concluded in Scott
Air Force Base that this interpretation does not fully take into account
the statutory requirement that work schedules may be revised less than
seven days in advance only where it is necessary to prevent the agency
from being handicapped in the execution of its functions or to forestall
a substantial increase in operational costs. In other words,
interpreting 5 C.F.R. Section 610.121(b) consistent with 5 U.S.C.
Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a), employees must
have a minimum of seven days advance notice of a change in work
schedules unless the change is being made for reasons set forth in 5
U.S.C. Section 6101(a)(3)(A) (and repeated in 5 C.F.R. Section
610.121(a)).
The proposal in this case permits work schedules to be changed when
the change is based on "substantial and reasonable considerations." The
Union contends that this phrase is consistent with the criterion
established in 5 C.F.R. Section 610.121(a). That is, the Union argues
that under this proposal the Agency could change work schedules if it
determined it would otherwise be seriously handicapped in carrying out
its functions or would incur a substantial increase in costs. We find,
however, that the Union's claim that the proposal permits the Agency to
change work schedules if there are "substantial and reasonable
considerations" cannot be sustained. This proposal expressly provides
that "in no instance shall (the Agency change work schedules) with the
intent of avoiding the payment of overtime." Thus, the proposal prevents
the Agency from changing work schedules to avoid the payment of overtime
even in circumstances when the Agency determines that the requirements
of 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section 610.121(a) are
met. That is, even if the Agency determines that it would be seriously
handicapped in carrying out its functions or that costs would be
substantially increased if it does not change work schedules to avoid
overtime, this proposal precludes such changes. Finally, we also find
no merit in the Union's apparent contention that the proposal merely
assures that employees who work more than a 40 hour workweek are paid
overtime under applicable laws and regulations. There is nothing in the
language of this proposal which concerns such a requirement.
C. Conclusion
Based on Scott Air Force Base, Proposal 1 is nonnegotiable because it
is inconsistent with 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section
610.121(a). In light of this result it is necessary to address the
Agency's additional contection that the proposal interferes with its
right to assign work. In addition, even if previous agreements between
the parties included provisions similar to Proposal 1, as claimed by the
Union, this cannot alter the fact that the proposal is nonnegotiable
under law and Government-wide regulations.
III. Union Proposal 2
Article 13, Section 4 (Shift Work)
Proposal: Unit employee shifts normally will not be changed
without notice of at least 72 hours before the first
administrative workweek affected by the change. Deviations from
this provision for advance notification may be made when dictated
by unforeseen or unusual circumstances beyond control of the
EMPLOYER. The COUNCIL will be notified of all deviations and upon
request will be furnished an explanation of the reasons for the
deviations. No deviations from the 72 hours notice shall be
affected to circumvent or avoid the payment of overtime.
A. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it
conflicts with a Government-wide regulation, 5 C.F.R. Section
610.121(b)(2). The Union contends, on the other hand, that the proposal
is fully consistent with the cited regulation.
B. Analysis and Conclusion
Proposal 2 requires that except for unforeseen or unusual
circumstances, shift changes may be made only after 72 hours of notice.
Moreover, this proposal expressly provides that "(n)o deviations from
the 72 hours notice shall be affected to circumvent or avoid the payment
of overtime." Thus, we find that the issues presented here are
essentially the same as those presented with respect to Union Proposal
1. That is, like Proposal 1, this proposal prevents the Agency from
making a shift change with less than 72 hours notice even where the
requirements of 5 U.S.C. Section 6101(a)(3)(A) and 5 C.F.R. Section
610.121(a) are met. Consequently, we find that Proposal 2 is
nonnegotiable because it is inconsistent with law and Government-wide
regulations. As with Proposal 1, there is nothing in the language of
this proposal to support the Union's apparent contention that it merely
assures employees the payment of legally entitled overtime.
IV. Union Proposal 3
Article 12, Section 5 (Basic Workweek and Hours of Work)
Proposal: The EMPLOYER will schedule the basic workweek so
that Unit employees will have 2 consecutive days off unless
mutually agreed to by the EMPLOYER and the COUNCIL.
A. Positions of the Parties
The Agency contends that this proposal conflicts with the provisions
of a Government-wide regulation and with management's right to assign
work under section 7106(a)(2)(B) of the Statute. The Union contends
that the proposal, when read in the context of the rest of the parties'
agreement, provides a mechanism for accommodating exceptions to a basic
5-day, Monday through Friday, workweek. It also states that the
language of the proposal is not inconsistent with law. Finally, the
Union notes, as it did in connection with Union Proposal 1, that this
proposal has been a part of the parties' agreements since at least 1969.
B. Analysis
5 U.S.C. Section 6101(a)(3)(B), set out in the Appendix to this
decision, states that except when the head of an agency determines that
his organization would be seriously handicapped in carrying out its
functions or that costs would be substantially increased, he shall
provide that the basic 40-hour workweek of his employees is scheduled on
5 days, Monday through Friday when possible, and that the 2 days outside
the basic workweek are consecutive. 5 C.F.R. Section 610.121(a)(2), set
out in the Appendix to this decision, implements 5 U.S.C. Section
6101(a)(3)(B) and contains the same language. Both law and regulation,
therefore, authorize the Agency head in this case to schedule the basic
workweek of his employees in a manner which does not provide for two
consecutive days off where he determines that the Agency would otherwise
be seriously handicapped in carrying out its functions or that costs
would be substantially increased. The proposal would prevent the Agency
head from scheduling the basic workweek in a manner which does not
provide for two consecutive days off, unless the Union agrees. Thus,
Proposal 3 in this case is distinguished from Proposal 3 in National
Association of Government Employees, Local R-14 and Veterans
Administration Medical Center, Topeka, Kansas, 24 FLRA No. 17 (1986) and
Proposal 4 in National Association of Government Employees, SEIU,
AFL-CIO and Veterans Administration Medical Center, Grand Junction,
Colorado, 24 FLRA No. 21 (1986). The cited proposals in those cases,
unlike Proposal 3 in this case, expressly permitted management to take
into account actual work requirements in scheduling days off and, as
interpreted by the Authority, thereby incorporated the statutory and
regulatory requirements concerning the scheduling of days off. Proposal
3 in this case is therefore, inconsistent with the cited law and
regulation. Accordingly, the Union's contention that the proposal
merely provides a mechanism for accommodating exceptions to a basic
5-day workweek is without merit.
In light of this result, we find it unnecessary to address the
Agency's additional contention that the proposal interferes with its
right to assign work. Moreover, as we stated in connection with Union
Proposal 1 above, even if previous agreements between the parties
included a provision similar to this proposal, the proposal is
inconsistent with law and Government-wide regulations.
C. Conclusion
For the reason provided above, we find that Union Proposal 3 is
inconsistent with 5 U.S.C. Section 6101(a)(3)(B) and 5 C.F.R. Section
610.121(a)(2) and, under section 7117 of the Statute, is outside the
duty to bargain.
V. Union Proposal 4
Article 20, Section 11 (Employee Performance)
Proposal: Persons assigned as EEO counselors or committee
members, COUNCIL representatives, etc., will not be rated marginal
or unsatisfactory on the critical elements of the job unless
his/her actual work performance demonstrates such performance.
Collateral duties are not critical elements. (Only the
underscored portion is in dispute.)
Union Proposal 5
Article 20, Section 12 (Employee Performance)
Proposal: Ratings of outstanding must include two or more
examples of performance exceeding the highly satisfactory level
for each critical element in which the employee's performance was
outstanding. Ratings of marginal or unsatisfactory must include
two or more examples of performance failing to meet the
performance standard for each critical element rated marginal or
unsatisfactory.
A. Preliminary Issue
Subsequent to filing its petition for review in this case, the Union
submitted a letter to the Authority alleging that the dispute over
Proposals 4 and 5 is moot. Specifically, the Union asserts that during
bargaining over these proposals the Agency agreed to include the
disputed language in the parties' collective bargaining agreement. The
Union has included documentation which it believes supports this
allegation. However, the Agency has submitted a statement disputing the
Union's allegation and reasserting its position that the referenced
proposals are nonnegotiable.
The Authority finds that the negotiability dispute concerning Union
Proposals 4 and 5 has not been rendered moot. The documentation
provided by the Union consists of photocopies of the proposals
purportedly initialed by the Agency's bargaining representative. We
conclude that this documentation is insufficient to substantiate the
Union's allegation. As the Union has not withdrawn its petition for
review with respect to the proposals, we will consider the parties'
substantive arguments concerning their negotiability. Any remaining
factual disputes concerning this matter should be resolved in unfair
labor practice proceedings. See American Federation of Government
Employees, AFL-CIO, Local 2736 and Department of the Air Force,
Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base,
Michigan, 14 FLRA 302 at 306 n.6 (1984).
B. Positions of the Parties
The Agency contends that Union Proposals 4 and 5 conflict with
management's rights to direct employees and assign work under section
7106(a)(2)(A) and (B) of the Statute. It also contends that Union
Proposal 5 is contrary to a Government-wide regulation.
The Union contends that both proposals are consistent with law and
regulation. It also notes that the proposals are in the parties' 1982
agreement.
C. Analysis
1. Union Proposal 4
It is clear from the context of this proposal that the phrase
"collateral duties" refers to employees assigned to perform functions as
Equal Employment Opportunity (EEO) counselors or committee members,
Union representatives, and the like. The Union states that the disputed
portion of the proposal is intended as a simple statement of the
following fact: Critical elements and standards must be consistent with
an employee's duties and responsibilities as contained in a position
description.
The Union's designation of an individual as a Union representative is
not a management assignment of work under section 7106(a)(2)(B) of the
Statute. Therefore, management cannot establish critical elements for
an employee's performance of his responsibilities as a union
representative. However, this proposal clearly involves other types of
"collateral duties" which constitute ligitimate assignments of work
under the Statute. Contrary to the Union's position, Proposal 4 has the
effect of preventing management from establishing critical elements for
the other types of collateral duties it describes. In other words, the
disputed portion of the proposal is prescriptive, not descrpitive, in
nature. In this regard, proposals which seek to place limitations on
the inclusion of certain matters in performance standards are attempts
to negotiate over the substance of performance standards and infringe on
management's discretion to direct employees and to assign work under
section 7106(a)(2)(A) and (B) of the Statute. See, for example,
American Federation of Government Employees, AFL-CIO, Local 1708 and
Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA
3 (1984) (Union Proposal 2) and cases cited therein. Union Proposal 4
has the same effect.
Finally, even if previous agreements included provisions similar to
this proposal, the proposal is nonnegotiable under the Statute.
2. Union Proposal 5
In American Federation of State, County, and Municipal Employees,
AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578, 579
(1984), the Authority found nonnegotiable a proposal requiring that an
employee demonstrate outstanding performance in a majority of the
critical elements of his position and that no individual performance
element be less than fully successful in order to receive an outstanding
performance rating. We found that the proposal was nonnegotiable
because it established what quality of performance in individual job
elements was required to achieve a particular summary rating and,
therefore, was inconsistent with management's rights to direct employees
and to assign work under section 7106(a)(2)(A) and (B). Union Proposal
5 has the same effect by requiring two or more examples of performance
exceeding the highly satisfactory level for each critical element in
which the employee's performance is outstanding, and two or more
examples of performance failing to meet the performance standard for
each critical element rated marginal or unsatisfactory.
As a result of this analysis it is unnecessary to address the
parties' additional contentions with respect to this proposal. As with
Union Proposal 4, even if previous agreements included similar language,
under the Statute Proposal 5 is nonnegotiable.
D. Conclusion
For the reasons and cases cited above, Union Proposals 4 and 5
interfere with management's rights to direct employees and assign work,
under section 7106(a)(2)(A) and (B) of the Statute, and are, therefore,
outside the duty to bargain.
VI. Order
Accordingly, the petition for review is dismissed.
Issued, Washington, D.C., January 6, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union's appeal contained three additional proposals.
However, based on the record, the dispute over a proposal originally
submitted as Article 22, Sections 8 and 10, apparently was resolved
during negotiations subsequent to the filing of the negotiability appeal
in this case and is moot. In addition, the Union specifically states
that is does not dispute the Agency's allegation of nonnegotiability
concerning a proposal originally submitted as Article 24, Section 9,
thereby also rendering it moot. Finally, the Agency has withdrawn its
allegation of nonnegotiability with respect to a third proposal
originally submitted as Article 20, Section 4. Accordingly, these three
proposals will not be considered further.
(2) For the text of 5 C.F.R. Section 610.121(b)(1) and (2) see the
Appendix attached to decision.
(3) For the text of 5 U.S.C. Section 6101(a)(3)(A) see the Appendix
attached to this decision.
(4) For the text of 5 C.F.R. Section 610.121(a)(1) see the Appendix
attached to this decision.
APPENDIX
2/ 5 C.F.R. Section 610.121(b)(1) and (2)(1986) provide:
Section 610.121 Establishment of work schedules.
(b)(1) The head of an agency shall schedule the work of his or
her employees to accomplish the mission of the agency. The head
of an agency shall schedule an employee's regularly scheduled
administrative workweek so that it corresponds with the employee's
actual work requirements.
(2) When the head of an agency knows in advance of an
administrative workweek that the specific days and/or hours of a
day actually required of an employee in that administrative
workweek will differ from those required in the current
administrative workweek, he or she shall reschedule the employee's
regularly scheduled administrative workweek to correspond with
those specific days and hours. The head of the agency shall
inform the employee of the change, and he or she shall record the
change on the employee's time card or other agency document for
recording work.
3/ 5 U.S.C. Section 6101(a)(3)(A) and (B) provide as follows:
Section 6101. Basic 40-hour workweek; work schedules;
regulations
(a)(3) Except when the head of an Executive agency, a military
department, or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization, that --
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive(.)
4/ 5 C.F.R. Section 610.121(a)(1) and (2) provide:
Section 610.121 Establishment of work schedules.
(a) Except when the head of an agency determines that the
agency would be seriously handicapped in carrying out its
functions or that costs would be substantially increased, he or
she shall provide that --
(1) Assignments to tours of duty are scheduled in advance of
the administrative workweek over periods of not less than 1 week;
(2) The basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 2 days outside the basic
workweek are consecutive(.)